Key legal issues to answer when sports makes a comeback

There are a lot of challenges that Philippine sports needs to hurdle to get back on its feet

MANILA, Philippines – After more than two months of slumber, Philippine sports is slowly making a comeback. Of course, this comeback won’t be as quick and easy as sending a fax that says, “I’m back.”

There are a lot of challenges that Philippine sports has to hurdle to get back on its feet. We have a long way to go before we can sit in a packed stadium cheering our idols again, but we’re on our way.

Assuming government directives allow sports and mass gatherings again, I enumerate and discuss 4 key legal issues that must be addressed or considered as we head back to the field, court, or gym.

Organizers or facility owners must comply with their legal duty to anticipate foreseeable dangers, such as being the center of a COVID-19 cluster.

Can the sports organizer, like a league or association, or the facility owner, like as a stadium owner, be held liable if a person gets infected during a sports event?

It’s a valid question, not only because we’re talking about the health and safety of people, but also because we’re talking about the health and safety of a lot of people.

A sports event is a possible center of a COVID-19 cluster because of the sheer number of people involved in putting it together. Just think how many players, coaches, referees, officials, staff, ushers, fans, vendors, security guards and custodians are present during your favorite game, and you’ll have an idea of the risk involved.

Aside from the obvious health risks of spreading the virus even more, organizers or facility owners may also face civil liability or monetary damages based on torts principles.

A tort is a wrongful or negligent act that injures another person. The basic elements of a tort are a) a legal duty, b) a breach of that duty, and c) the breach was the proximate cause of the injury or the damage.

Organizers and facility owners have the legal duty to anticipate and prevent reasonably foreseeable dangers.

The spread of COVID-19 during a sports event is a reasonably foreseeable danger, hence the organizer or the league must impose measures to prevent it from happening. What should these measures be?

The measures should likewise be reasonable. Granted, what reasonable is will depend mostly on the circumstances involved, but thankfully, both the national and local government have issued a number of COVID-19 guidelines, which can be used as the benchmark for what reasonable is.

When the guidelines for mass gatherings or sports events are finally issued, strict compliance is a must. Non-compliance may not only lead to government-imposed sanctions, it can also be used as evidence against the organizer to prove the breach of its legal duty.

As an added protection from liability, organizers and facility owners must go beyond those required by government directives.

It would do well to invest in testing kits, provide masks or other protective equipment, create structures and systems that will ensure social distancing, and follow best practices from other areas in the world. This will bolster an organizer’s claim that it has implemented measures over and above its legal duty.

With the first two elements out of the way, the issue will then revolve around proximate cause. Assuming the infected victim is able to show that he or she got the virus during the event, can it be considered the proximate event that caused the injury?

It’s possible. Proximate cause is that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.

A Supreme Court case decided in 2017 pinned liability on an organizer of a youth marathon when a jeepney ran over one of its teenage participants. The Supreme Court found that the lack of safety precautions of the organizer was the proximate cause of the death of the teen, despite the jeepney dealing the fatal blow. COVID-19 victims will surely invoke this case to hold organizers liable.

As a defense, the organizers and facility owners may invoke the defense of the assumption of risk. Under this defense, those who voluntarily engage in activities despite knowing the risks involved can’t claim damages.

This will be the first line of defense of organizers or facility owners, as anyone who flocks to these sports events know the risks of contracting COVID-19 in mass gatherings.

Another possible way for an organizer or league to disclaim liability is via waivers.

Organizers and facility owners may require waivers of liability from everyone involved. Said waiver will state that the organizers or facility owners will not be liable to anyone who gets infected during the event. These waivers are generally valid, albeit with certain limitations.

First, given the current situation, these waivers may be attacked and declared void for violating public policy. Second, waivers for injuries based on the gross negligence of a party are also void.

Hence, an organizer cannot simply rely on a waiver to skirt possible liability. It must still comply with its legal duty to protect from anticipated risks of infection. If it does not, it may be found grossly negligent, making the protection from the waiver ineffective.

The same principles will also apply to gyms and recreation centers looking to reopen after government restrictions have eased up.

In all cases, it will do well to err in the side of utmost caution, both to prevent the spread of the virus and to avoid the headache and costs of litigation.

School-based athletic associations must provide higher safety protocols and resolve issues on residency and eligibility.

While school-based athletic associations such as the UAAP and the NCAA grapple with cancelled seasons, these associations, along with their member-schools and the student-athletes, must also consider how to move forward next season.

Competitions involving minor student-athletes, such as the UAAP and NCAA juniors divisions, face stricter duties compared to the organizers and facility owners discussed above.

Under Article 218 of the Family Code, schools, administrators, and teachers have special parental authority and responsibility over minors during authorized activities. These activities necessarily include school-sanctioned training sessions, games, and tournaments.

This special parental authority and responsibility translate to a higher legal duty that member-schools have to meet for their minor student-athletes.

School-based athletic associations must also tackle issues on how to treat this “lost season.” Will the players of second semester sports be given an extra year of eligibility? What about the maximum age restrictions for student-athletes, will that be adjusted for returning athletes too?

While the associations have the discretion in making their own rules, these rules should at least be reasonable and consistent in its application.

Assuming student-athletes are given an extra year or semester to play, schools must then revisit their scholarship contracts with the affected student-athletes and determine if these contracts need to be extended to accommodate the extra year.

As much as possible, we want to avoid the absurd situation where a student-athlete/scholar is willing and eligible to play but is financially prevented to do so because of an expired scholarship contract.

School-based athletic associations must also consider how this truncated season affects the residency requirements of transferees.

Under the Student-Athlete Protection Act (SAPA), athletic associations may impose a year of residency for transferring university or collegiate student-athletes. Hence, school-based associations have to make sure that whatever adjustments they make are still within the legal confines of the SAPA.

Sports employers making tough decisions regarding their employees must comply with existing labor laws and guidelines.

Sports businesses are facing drastic losses because of the pandemic. While some businesses have shifted quite admirably and quickly to providing services online, the model simply doesn’t work for others.

Professional leagues like the PBA, PVL, and PSL have had their seasons cut short, which of course, has led to financial losses stemming from cancelled sponsorship agreements and the loss of gate receipts from live games.

Our professional sports model has always been tied or linked to corporate sponsorships, wherein corporations put up their own teams in the different leagues. With these very corporations facing losses on the business side of the spectrum, it’s possible that they cut off their “sports arm,” or at least limit the financial burden thereof, in order to stay afloat.

Sports clubs, physiotherapy and sports rehab clinics, and gyms face the similar predicament.

Sports businesses have resorted to scaling back on labor costs to survive. In doing so, these employers must take note of the labor law implications of their decisions.

DOLE Labor Advisory No. 17, Series of 2020, allows employers and employees to agree on pay cuts, as long as these are mutually agreed on, in writing, and shall not exceed 6 months.

This is a viable option for businesses or teams who wish to retain their roster of players, staff, or trainers, while cutting back on costs. For sports employees, this may be their only choice to keep a solid stream of income, albeit a lower one, during these uncertain times.

For sports businesses which have been forced to suspend their operations, Article 289 of the Labor Code allows employers to place their employees on floating status for not more than 6 months.

During the floating status period, the employees will not be entitled to salary under the “no work, no pay” principle. However, upon resumption, the employees must be reinstated without loss of seniority rights.

Sports businesses that decide to retrench their employees to prevent further business losses may legally do so. However, they must inform the employee, send the required notice to DOLE within 30 days from the date of termination, and pay the employee the appropriate separation pay.

Sports contracts will have to be revisited, renegotiated, and redrafted to fit the new norm.

A web of contracts forms the foundation of sports. A single sports event will have numerous underlying contracts to support it – sponsorship and advertisement agreements, players and talent contracts, media licensing deals, lease-of-venue contracts, even the outsourcing of security and custodian services.

Outside the actual event, you have even more contracts that rely on sports, such as endorsement deals of athletes, talent management and agent agreements, and contracts involving post-event media coverage and talk shows.

The pandemic affected all these contracts. Some contracts without specific force majeure provisions to fall back on may have been rendered ineffective all together because Article 1174 of the Civil Code excuses non-performance based on fortuitous events.

Before leagues or organizers even resume, these contracts must be revisited. Most, if not all, will need to be renegotiated and revised.

Is an athlete training at home via Zoom complying with his or her contractual obligation to train and stay fit – and will it be compensable? Will the term of the contract be extended to accommodate a postponed season?

What happens to wages or payment schedules which used to be based on appearances and actual games played? What performance metrics will be used in sponsorship agreements if games must be played behind closed doors? Will participants be required to undergo COVID-19-related tests before resuming practice – and what if an athlete objects for personal or religious reasons?

These are just a few questions that have to be ironed out in new sports contracts.

There are two things that will surely be present in sports contracts moving forward. The first is a clear force majeure provision that prepares parties for next steps in case a new COVID-19 wave hits. The second is a provision that requires either one of the parties to secure proper insurance to protect from force majeure events.

These are just 4 legal issues that we have to consider. As sports crawls its way back to pre-COVID-19 days, more legal issues will surely pop up. These might be daunting, but for sports, these will be worth answering. – Rappler.com

Mickey Ingles is a sports lawyer for the Law Firm of Ingles, Laurel, and Calderon. He teaches Sports Law in the Ateneo Law School and is the author of Laws for Sports and the Sporty.